Children play on the playground at the Trinity Lutheran Child Learning Center in Columbia, Mo.

Courtesy of Alliance Defending Freedom

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Originally published on April 19, 2017 7:13 pm

The U.S. Supreme Court hears oral arguments Wednesday in a Missouri case with the potential to open grant programs to parochial schools.

Wednesday's showdown pitting school choice and religious liberty advocates against taxpayer groups and civil libertarians has been long in coming. The Supreme Court had agreed to hear the case of Trinity Lutheran Church v. Pauley—Pauley being the director of the Missouri Department of Natural Resources at the time — in January 2016.

A month later, Justice Antonin Scalia died unexpectedly, leaving an eight-justice court that was deeply divided on questions concerning the separation of church and state. For nearly a year and a half, the justices punted, declining to hear oral arguments in the case until the court was back up to full strength.

Now that day has come — sort of. A funny thing happened on the way to the Supreme Court that's explained in detail below.

"Children should not be treated as second-class citizens"

First, the case: Trinity Lutheran Church in Columbia, Mo., operates a preschool and day care learning center as part of its church ministry. Ninety children, ages 2 to 5, attend the school and play on its playground.

In 2012 the church applied for a grant from the state to essentially rubberize the playground surface, using old and discarded tires. Trinity Lutheran sought the funds despite regulations barring state grants to religious institutions.

The Missouri Department of Natural Resources, which administers the scrap tire program, had enough money to fund playground resurfacing for 14 of the 44 applicants. Although Trinity Lutheran would have qualified otherwise, the state turned it down, citing a Missouri Supreme Court ruling that bars giving state aid to a school that is owned or controlled by a church, sect or denomination and where the applicant's mission is spiritual in nature.

There is no doubt that the learning center's mission is spiritual in nature, even if the playground surface is not.

Trinity Lutheran went to court, claiming that the grant denial interfered with its free exercise of religion and amounted to unconstitutional discrimination, based on religion, against the school.

Gail Schuster, director of the Trinity Lutheran Child Learning Center, said in a YouTube video about the case that the school applied to the program to provide a safe playground for the preschoolers.

"The issue here is that children are children, and their safety is important to us, and the children should not be treated as second-class citizens," Schuster said.

The grant program was open to all nonprofit schools except religious ones, notes David Cortman of the Christian religious liberty group Alliance Defending Freedom. Excluding parochial schools takes the constitutional mandate of separation of church and state "too far," he says.

"Now you're treating a religious organization worse than everybody else," he says. "The government is not funding a religious activity; it's funding the playground where children play."

Not so, says the state of Missouri in its brief to the court. The "free exercise" clause of the U.S. Constitution, in its own words, forbids only government action that "prohibits" the free exercise of religion; it does not require the government to subsidize churches or provide equal funding opportunities for religious and nonreligious groups alike.

Trinity Lutheran's insistence that its playground resurfacing project is secular does not solve the problem, adds the state, because money is fungible, and because the church's religious intent is stated specifically in the Learning Center's mission.

Keeping the government out of churches

The ACLU, which filed a brief supporting the state's position, points to the Constitution's other religion clause, which bars any state establishment of religion. The Founding Fathers included that provision because they understood the problems that arise when government and religion become entangled, according to the ACLU's Daniel Mach.

"When you have the government providing direct cash to houses of worship, you threaten church autonomy and independence," he says. "You can pit denomination against denomination, sect against sect."

He argues that we as a society have given religious institutions many special benefits and exemptions from laws that apply to everyone else to prevent the government from interfering with religion. Religious institutions not only have tax-exempt status, but general civil rights laws do not apply to them.

Five years ago, the Supreme Court ruled unanimously that teachers at a Lutheran school could not sue under the Americans with Disabilities Act, because the church said it considers teachers to be ministers of the church. The ACLU's Mach argues that now these religious schools are trying to "have their cake and eat it too."

"It wants to keep those benefits and also get handouts from the government," he says.

Making this case yet more interesting is a provision in the Missouri Constitution — and similar language in 36 other state constitutions — that bars direct or indirect aid to parochial schools.

In recent years, as the U.S. Supreme Court has become increasingly willing to lower the wall separating church and state, these state provisions have presented bigger and bigger obstacles to advocates of religious liberty and school choice.

Those activists have gone to court, rather than seeking to strike the state constitutional provisions through the democratic process.

"There is a movement to undermine public schools and to funnel taxpayer dollars to religious schools," Mach says. "Depending on how this case goes, this could greatly affect how that movement operates."

Bait-and-switch by the Missouri government

Well, maybe. To reiterate, a funny thing happened on the way to the Supreme Court.

Last week the newly elected Republican governor of Missouri, Eric Greitens, decided to change the state's long-standing policy on aid programs like this one — blaming "government bureaucrats" for the previous policy.

"You sent me here to fight for all Missourians, and that includes fighting for and defending people of faith who are too often under attack," he said in a Facebook video ordering the Department of Natural Resources to lift its ban on state grants for religious organizations.

Making such a grand stand may be good politics, but it is lousy legal strategy. Gov. Greitens' new position could moot the case before the Supreme Court Wednesday.

Upon seeing the governor's press release, the Supreme Court last Friday asked both sides to submit their views on whether there is still a live dispute, since the state of Missouri now agrees with the position taken by Trinity Lutheran.

Both sides said on Tuesday that the case should go forward. Trinity Lutheran, for instance, contends that another governor sometime in the future could change the policy back. And Missouri says there's a "reasonable possibility" that the state courts, relying on the state Constitution, could prevent Gov. Greitens' policy from going into effect.

In addition, the Missouri attorney general's office took itself out of the case, delegating the litigation to the former state solicitor general to defend the office's previous position.

In short, a case that a week ago looked like the showdown at the O.K. Corral on aid to parochial schools now looks considerably more uncertain.

Intern Lauren Russell contributed to this report.

Copyright 2017 NPR. To see more, visit http://www.npr.org/.

STEVE INSKEEP, HOST:

The United States Supreme Court is busy this week with a ninth justice, Neil Gorsuch, on the bench. Today, the court hears arguments in a Missouri case with the potential to open state coffers for aid to parochial schools. Like Missouri, three-quarters of the states have constitutional provisions barring direct or indirect aid to religious schools. But a funny thing happened on the way to the Supreme Court, as NPR's legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: On January 15, 2016, the Supreme Court agreed to hear the case of Trinity Lutheran Church v. the director of the Missouri Department of Natural Resources. A month later, Justice Antonin Scalia died unexpectedly, leaving an eight-justice court that was deeply divided on questions concerning the separation of church and state. And so for nearly a year and a half, the justices punted, declining to hear oral arguments in the case until the court was back up to full strength. Now that day has come, sort of - more on that sort of later - first, the case.

The Trinity Lutheran Church in Columbia, Mo., operates a preschool and day care learning center as part of its church ministry. Ninety children, ages 2 to 5, attend the school and play on its playground. In 2012, the church applied for a grant from the state to essentially rubberize the playground's surface using old and discarded tires. It applied despite written regulations barring state grants to religious institutions.

The Department of Natural Resources, which administers the scrap tire program, had enough money to fund 14 of the 44 applicants. Although Trinity Lutheran would have qualified otherwise, the state turned it down, citing a Missouri Supreme Court ruling that bars giving state aid to a school that is owned or controlled by a church, sect or a denomination, and where the applicant's mission is spiritual in nature. There is no doubt that the learning center's mission is spiritual in nature, even if the playground's surface is not. Trinity the Lutheran went to court, claiming that the grant denial interfered with its free exercise of religion and unconstitutionally discriminated against the school based on religion. Gail Schuster is director of the Trinity Lutheran Child Learning Center.

GAIL SCHUSTER: The issue here is that children are children. And their safety is important to us. And the children should not be treated as second-class citizens.

TOTENBERG: Dan Cortman of the Alliance Defending Freedom will be representing the church in the Supreme Court today. The grant program, he notes, was open to all not-for-profit schools except religious ones.

DAN CORTMAN: Just by excluding them because they're religious takes the separation of church and state and goes too far because now you're treating a religious organization worse than everybody else. The government is not funding a religious activity. It's funding the playground where students play.

TOTENBERG: Not so, says the state of Missouri. The free exercise clause of the Constitution, in its own words, forbids only government action that prohibits the free exercise of religion. It does not require the government to subsidize churches or provide equal funding opportunities to religious and non-religious groups alike. Trinity Lutheran's insistence that its playground resurfacing project is secular does not solve the problem, adds the state, because money is fungible. And here, the church's religious intent is stated specifically in the learning center's mission.

The ACLU, which filed a brief supporting the state's position, points to the Constitution's other religion clause barring any state establishment of religion. The Founders included that provision because they understood the problems that arise when government and religion become entangled, according to the ACLU's Dan Mach (ph).

DAN MACH: When you have governments providing direct cash to houses of worship, you threaten church autonomy and independence. You can pit denomination against denomination, sect against sect.

TOTENBERG: And, he maintains, even neutral criteria can operate to favor, for example, big churches or denominations against smaller ones. Mach argues that we as a society have given religious institutions many special benefits and exemptions from laws that apply to everyone else. Religious institutions not only have tax exempt status, but general civil rights laws do not apply to them.

Five years ago, the Supreme Court ruled unanimously that teachers at a Lutheran school could not sue under the Americans with Disabilities Act because they're considered ministers of the church. The ACLU's Mach contends that by its position in this case, religious schools are trying to, quote, "have their cake and eat it too."

MACH: It wants to keep those benefits and also get handouts from the government.

TOTENBERG: Making this case yet more interesting is the Missouri State Constitution and similar provisions in another 36 states barring direct or indirect aid to parochial schools. In recent years, as the U.S. Supreme Court has become increasingly willing to lower the wall separating church and state, these state constitutions have become a bigger and bigger obstacle. And advocates of religious liberty have gone to court rather than seeking through the democratic process to get rid of the state constitutional provisions. The ACLU's Mach contends that this case is part of a movement.

MACH: There is a movement to undermine public schools and to funnel taxpayer dollars to religious schools. And depending on how this case goes, that could greatly affect how that movement operates.

TOTENBERG: Well, maybe. As we said at the beginning, a funny thing happened on the way to the Supreme Court. Last week, the newly elected Republican governor of Missouri, Eric Greitens, decided to change the state's long-standing policy on aid programs like this one, blaming, quote, "government bureaucrats" for the previous policy.

(SOUNDBITE OF ARCHIVED RECORDING)

ERIC GREITENS: You sent me here to fight for all Missourians. And that includes fighting for and defending people of faith who are too often under attack.

TOTENBERG: Making such a grand stand may be good politics, but it's lousy legal strategy because the governor's new position could moot the case. Upon seeing the governor's press release, the Supreme Court last Friday asked both sides to submit their views on whether there is still a live dispute here since the state now agrees with the position taken by Trinity Lutheran. Today's argument should be, shall we say, interesting. Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF EAST WEST QUINTET'S "INTERSTELLAR") Transcript provided by NPR, Copyright NPR.